Chattisgarh High Court

D.S.Rajput vs State Of Chhattisgarh on 25 October, 2021

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                                                                        AFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

                         WPCR No. 370 of 2017

                                            Reserved on : 09-08.2021
                                           Pronounced on : 25-10-.2021

   1. D.S.Rajput S/o Late Pratap Singh Aged About 52 Years Occupation
      Service Posted As Dy. Manager Survey In Bagdeva Mine S E C L
      Korba , R/o 2 And B 16 Officers Colony Bankimongra Post
      Bankimongra Tahsil Katghora District Korba Chhattisgarh.
   2. Jitendra Mishra S/o Late B L Mishra Aged About 50 Years Occupation
      Service Posted As Sr. Manager Mining Croup Training Center Singhali
      S E C L R/o Q. No. D 4 Officers Colony Dhelwadih Post Office
      Katghora District Korba Chhattisgarh.
   3. K Ramakrihsna S/o K Srinivasarao Aged About 52 Years Occupation
      Service Posted As Chief Manager Mining S O P And P S E C L Korba
      R/o 1 0 6 Power Heights Budhwari Bazar Korba District Korba
      Chhattisgarh                               ---- Petitioners
                                  Versus
   1. State of Chhattisgarh Through The Secretary , Home Department Naya
      Raipur Mantralaya Raipur Chhattisgarh.
   2. The Superintendent Of Police , Korba Chhattisgarh. , District : Korba,
      Chhattisgarh
   3. Office In Charge Of Police Station, Bankimongra District, Korba
      Chhattisgarh.
   4. The Superintendent Of Police , Korba District Korba Chhattisgarh. ,
   5. Gajendra Singh Tomar S/o Shri V S Tomar Aged About 37 Years R/o
      Bhatgaon District Surajpur Chhattisgarh Partner Of Firm M / S
      Gajendra Singh Tomar 334 / 3 Sharda Vihar Korba Chhattisgarh Office
      334 / 3 Sharda Vihar Korba Chhattisgarh., District : Korba,
      Chhattisgarh
   6. Sahtosh Kumar Sharma S/o Shri Surjitlal Sharma Aged About 37 Years
      R/o 334 / 3 Sharda Vihar Near Mudadai Mandir Korba Tahsil And
      District Korba Chhattisgarh. , District : Korba, Chhattisgarh
                                                           ---- Respondents

For Petitioners : Mr. Anand Mohan Tiwari, Advocate. For Respondent/State : Mrs. M. Asha, Panel Lawyer. For respondent No.6 : Mr. Ranbeer Singh Marhas, Advocate

Hon'ble Shri Justice Narendra Kumar Vyas CAV Order

1. The petitioners have filed this writ petition under Article 226 of the Constitution of India assailing the order dated 8-12-2016 passed by the Judicial Magistrate First Class, Katghora, District Korba in Criminal Case No. 138 of 2017 whereby learned Judicial Magistrate First Class, Katghora, has allowed the application filed by the respondent No.6/complainant Santosh Kumar Sharma and directed the Incharge of Police Station Bankimongra to register the complaint against petitioners D.S. Rajput, Jitendra Mishra and K. Ramakrishna and respondent No.5 Gajendra Singh Tomar for offence punishable under Section 420 of IPC and after completion of investigation, final report be submitted.

2. The brief facts, as projected by the petitioners, are that petitioner No.1 was posted as Deputy Manager, Survey, petitioner No.2 was posted as Mine Manager till 9-2-2015 and the petitioner No.3 was posted as Suberea Manager in Singhali Mine Korba, S.E.C.L. It is contended by learned counsel for the petitioners that between 1-1-2014 to 31-12-2015 the regional office as well as by Subarea office of SECL awarded 13 number of different work orders through tender process followed by SECL to respondent No.5 in which respondent No.6 is one of the partners. An an amount of Rs.12,41,970/- has already been paid to respondent No.5/ M/s. Gajendra Singh Tomar in respect of entire work completed by the firm except the bill to the tune of Rs.95,709/- for the work order No.1601 dated 17-10-2015 for transportation and installation of Drive head at TB-4 due to non-production of LPC (Last pay certificate) and necessary formalities as mentioned in the letter dated 2-4-2015 issued by the office of the Regional Coal Mines Provident Fund Commissioner. It is further contended that respondent No.6 submitted payment receipt of deposit slip dated 8-10-2015. The office of the petitioner No.1 enquired about the said deposit slip submitted by the respondent No.6 and it was

found false. The petitioners have sought explanation, which was found to be false one. The respondent No. 6 after query submitted that he may be given time to make good the said default committed by him. Thereafter, respondent No.6 made a false complaint before the Police Authorities on the basis of concocted and fabricated story created by him and on 8-7-2016 he filed an application under Section 156(3) of Cr.P.C before learned Judicial Magistrate First Class who in turn considering the contention of the complaint has directed the Police authorities to investigate the complaint.

3. Learned counsel for the petitioners would submit that registration of complaint is nothing, but an abuse of process of law as learned Judicial Magistrate First Class without application of mind has ordered for registration of complaint in a mechanical manner, which has infringed the fundamental right of the petitioners to live with liberty, therefore, registration of complaint is prima facie illegal and same deserves to be quashed by this court.

4. Learned State counsel has filed its return in which it has been contended that investigation has been transferred to the Special Investigating Officer, Bilaspur for investigation and after investigation, final charge-sheet has been submitted by the Police and now the case has been registered as criminal case No. 138 of 2017. Learned Judicial Magistrate, First Class after considering the contents of the complaint has rightly directed for investigation. The order passed by learned Judicial Magistrate First Class, is legal and justified and same is not liable to be interfered by this court.

5. Learned counsel for respondent No.6 has not filed any return to the writ petition but would refer to the documents already brought on record. He would submit that in the complaint respondent No.6 has stated that the petitioner No.1 has taken respondent No.6 to the office of respondents No.2 and 4 and it has been stated that the officers have decided to give him commission and it has also

been informed to him that he will work on behalf of the petitioner No.2 as a contractor. Since the petitioner was unemployed, therefore, he has started work of manual transportation of support and stemming from haulage to working section 61 E section. The firm M/s Gajendra Singh Tomar 334/3 Sharda Vihar Korba from 12-2-2014 to November 2015 and has provided 19 labourers in three shifts in the office of the petitioners No.1, 3 and 4. though as per the relevant provisions of Provident Fund Act, only 19 labourers were to be supplied but they have directed him to supply all the labour. The commission for work can be distributed between them and on their pressurize, the respondent No. 6 has supplied labourers to execute the work order. The complainant/respondent No.6 has already supplied 6050 labourers but respondent No.1 to 4 paid only payment of 2400 labourers and as such they have given less payment of Rs. 18 lakhs despite requests made by respondent No.6 and when he has pursued them, petitioner No.1 to 4 have stopped supply of labourers with effect from 4-12-2015 and have not released the payment of Rs.18 lakhs. When he requested them to release the payment they have abused him, threatened him to kill and gave him mental torture to him and to his family members. It is further submitted by learned counsel for the respondent No.6 that as he filed complaint against petitioners, as with intent to cheat, they have executed the contract and have caused financial loss to him. Thus, they have committed offence punishable under Section 420 of IPC. Learned Judicial Magistrate First Class taking cognizance of the complaint has registered the complaint on 8- 11-2016. The operative portion of the order is extracted herein- below for convenience.

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6. I have heard learned counsel for the parties, perused the documents.

7. Learned counsel for the petitioners would submit that respondent No.6 who is partner of respondent No.5 has also filed an affidavit before the office of SECL on 21-5-2016 which clearly established that the work was monitored and controlled by respondent No.5 and SECL has already paid Rs.12,41,970/- to M/s. Gajendra Singh Tomar in his bank account in respect of entire work complete by him, except bill to the tune of Rs.95,709/- for the work order No.1601 dated 17-10-2015 for the working of transportation and installation of Dive head at TB 4 due to non- production of LPC by respondent No.6. Respondent No.6 has submitted LPC which was revealed on enquiry as false. The petitioners have given opportunity to respondent No. 6 but he has not submitted any explanation. The instant complaint has been

filed with malafide intention which is nothing but an abuse of process of law. He would further submit that learned Judicial Magistrate First Class without applying his mind mechanically directed the Police authorities for investigation which is against the judgment passed by Hon'ble Supreme Court in Sakiri Vasu vs. State of Uttar Pradeh and others, reported in 2008(2) SCC 409 wherein it has been held in para 26 which is extracted herein- below for convenience.

"26. If a person has a grievance that his FIR has not been registered by the police station his first remedy is to approach the Superintendent of Police under Section 154(3) Cr.P.C. or other police officer referred to in Section 36 Cr.P.C. If despite approaching the Superintendent of Police or the officer referred to in Section 36 his grievance still persists, then he can approach a Magistrate under Section 156(3) Cr.P.C. instead of rushing to the High Court by way of a writ petition or a petition under Section 482 Cr.P.C. Moreover he has a further remedy of filing a criminal complaint under Section 200 Cr.P.C. Why then should writ petitions or Section 482 petitions be entertained when there are so many alternative remedies?.

8. Learned counsel for the petitioners would further submit that the learned Magistrate while deciding the application should have applied its mind should have reflected in the order, what is weighed in the mind of Magistrate for passing of an order for investigation under Section 156(3) of Cr.P.C., but there is no such whisper or no reason has been assigned, therefore, direction for submission of final report to the police authorities is against the judgment of Hon'ble Supreme Court in Priyanka Srivastava and another vs. State of Uttar Prdsh and others, reported in 2015 (6) SCC 287 wherein it has been observed in para 22, which is extracted herein-below for convenience.

"22. In Anil Kumar v. M.K. Aiyappa[3], the two-Judge Bench had to say this: (SCC p.711, para 11)

"11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed [(2008) 5 SCC 668] examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."

9. Per contra, learned State counsel would submit that the learned Judicial Magistrate First Class after perusal of the documents in support of the complaint, has passed the impugned order on 8- 12-2016 directing the Station House Officer, Police Station Bankimongra, District Korba to register FIR for the offence punishable under Section 420 of IPC against the petitioners and respondent No.5 which is legal and justified and the Police authorities investigated the matter and thereafter submitted the final charge sheet before the concerning court below. As such, learned Magistrate has not committed any material illegality or infirmity in passing the impugned order warranting any interference by this court, therefore, the petition filed by the petitioners deserves to be dismissed. In support of his arguments, he has relied upon the judgment of Honorable Supreme Court in HDFC Securities Limited and others vs. State of Maharashtra and another, reported in AIR 2017 Vol-1, SC 61 wherein

Honorable Supreme Court has held in para 24 which is extracted herein-below for convenience.

"24. It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 04.01.2011 passed by the learned Magistrate under Section 156(3) of Cr.P.C. The learned counsel appearing on behalf of the appellants after summarizing their arguments in the matter have emphasized also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order under Section 156(3) of Cr.P.C. requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227 of the Constitution of India or under Section 482 of Cr.P.C., at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under Section 482 of Cr.P.C. should be sparingly used. In these circumstances, we do not find that there is any flaw in the impugned order or any illegality has been committed by the High Court in dismissing the petitions filed by the appellants before the High Court.

Accordingly, we affirm the order so passed by the High Court dismissing the writ petitions. The appeal is dismissed".

10. On the other hand, learned counsel for respondent No.6 would submit that the learned Judicial Magistrate First Class has applied

his mind and there is prima facie a finding that the offence has been committed and it has been well settled legal provision that before directing for registration of FIR, there is no thread bearing investigation has to be conducted by the Magistrate, but he has to apply his mind and should reach to prima facie conclusion that prima facie offence is committed, then registration of FIR can be very well directed.

11. Learned counsel for the petitioner would further submit that it is well settled by Hon'ble the Supreme Court that at the time of issuance of process, the probity of the materials on record by the prosecution or complainant has to be accepted as true for that particular stage. The averments in the complaint and the preliminary evidence and the documents on record certainly call for issuance of process. It has been further well settled by Hon'ble the Supreme Court that the Magistrate making an enquiry under Sections 200 and 202 of Cr.P.C. has no jurisdiction to weigh the evidence in golden scales. It is the bounden duty of the Magistrate to elicit all facts not merely with a view to protect the interest of an accused who is absent but also with a view to book a person against whom the allegations have been made. What has to be seen is that whether there are sufficient grounds for proceeding and not to see whether there are sufficient grounds for conviction.

12. Hon'ble the Supreme Court in Devarapalli Lakshminarayana Reddy and others vs. V. Narayana Reddy and others, reported in 1976 (3) SCC 252 has held in para 13 and 17 which are extracted herein-below for convenience.

"13. It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words "may take cognizance" which in the context in which they occur cannot be equated with must take cognizance". The word "may" gives a discretion to the

Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under s. 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself.

17. Section 156(3) occurs in Chapter XII, under the caption: "Information to the Police and their powers to investigate"; while s. 202 is in Chapter XV which bears the heading "Of complaints to Magistrates". The power It order police investigation under s. 156(3) is different from the power to direct investigation conferred by s. 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre cognizance stage, the second at the post- cognizance stage when the Magistrate is in seisin of the case. 'That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under s. 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under s. 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-

cognizance stage and avail of s. 156(3). It may be noted further that an order made under sub-section (3) of s. 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under s. 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under s. 156 and ends with a report or chargesheet under s.

173. On the other hand s. 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered

under s. 202 to direct within the limits circumscribed by that section, an investigation "for the purpose of deciding whether or not here is sufficient ground for proceeding ". Thus the object of an investigation under s. 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him".

13. Hon'ble the Supreme Court in Tula Ram and others vs. Kishore Singh, reported in 1977 (4) SCC 459 has observed in paras 9, 10 and 15 which are extracted herein-below for convenience.

"9. It is now well settled by the decision of this Court in Abhinandan Jha & Ors. Dinesh Mishra(1) that while a Magistrate can order the police to investigate the complaint it has no power to compel the police to submit a charge- sheet on a final report being submitted by the police. In such cases a Magistrate can either order reinvestigation or dispose of the complaint according to law. Analysing the scheme of the Code on the subject in question it would appear that section 156(3) which runs thus: 10. "10. Any Magistrate empowered under HYPERLINK "https://indiankanoon.org/doc/686759/"section 190 may order such an investigation as above mentioned. appears in Chapter 12 which deals with information to the Police and the powers of the police to investigated a crime. This section, is therefore placed in a Chapter different from Chapter 14 which deals with initiation of proceedings against an accused person. It is, therefore, clear that sections 190 and 156(3) are mutually exclusive and work in totally different spheres. In other words, the position is that even if a Magistrate receives a complaint under section 190 he can act under section 156(3) provided that he does not take cognizance. The position, therefore, is that while Chapter 14 deals with post cognizance stage Chapter 12 so far as the Magistrate is concerned deals with pre-cognizance stage, that is to say once a Magistrate starts acting under section 190 and the provisions following he cannot resort to section 156(3).

Mr. Mukherjee vehemently contended before us that in view of this essential distinction once the Magistrate chooses to act under section 156(3) of the Code it was not open to him to revive the complaint, take cognizance and issue process against the accused.

Counsel argued that the Magistrate in such a case has two alternatives and two alternatives only either he could direct reinvestigation if he was not satisfied with the final report of the police or he could straightaway issue process to the accused under section 204. In the instant case the Magistrate has done neither but has chosen to proceed under section 190 (1 ) (a) and section 200 of the Code and thereafter issued process against the accused under section

204. Attractive though the argument appears to be we are however unable to accept the same. In the first place, the argument is based on a fallacy that when a Magistrate orders investigation under section 156(3) the complaint disappears and goes out of existence. The provisions of section 202 of the present Code debar a Magistrate from directing investigation on a complaint where the offence charged is triable exclusively by the Court of Sessions. On the allegations of the complainant the offence complained of was clearly triable exclusively by the Court of Sessions (2) [1967] 3 S.C.R. 668 and therefore it is obvious that the Magistrate was completely debarred from directing the complaint filed before him to be investigated by the police under HYPERLINK "https://indiankanoon.org/doc/1149595/"sectio n 202 of the Code. But the Magistrate's powers under HYPERLINK "https://indiankanoon.org/doc/99487/"section 156(3) of the Code to order investigation by the police have not been touched or affected by section 202 because these powers are exercised even before cognizance is taken. In other words, section 202 would apply only to cases where the Magistrate has taken cognizance and chooses to enquire into the ,complaint either himself or through any other agency. But there may be circumstances as in the present case where the Magistrate before taking cognizance of the case himself

chooses to order a pure :and simple investigation under section 156(3) of the Code. The ,question is, having done so is lie debarred from proceeding with the complaint according to the provisions of sections 190, 200 and 204 ,of the Code after receipt of the final report by the police? We see :absolutely no bar to such a course being adopted by the Magistrate. In the instant case, there is nothing to show that the Magistrate had taken cognizance, of the complaint. Even though the complaint was filed by the Magistrate, he. did not pass any order indicating that he bad applied his judicial mind to the facts of the case for the purpose of proceeding with the complaint. What he had done was to keep the complaint aside and order investigation even before deciding to take cognizance on the basis of the complaint. After the final report was received the Magistrate decided to take cognizance of the case on the basis of the complaint and accordingly issued notice to the 'Complainant. Thus, it was on 2nd April, 1975 that the Magistrate decided for the first time to take cognizance of the complaint and ,directed the complainant to appear. Once cognizance was taken by the Magistrate under section 190 of the Code it was open to him lo choose any of the following alternatives :

(1) Postpone the issue of process and enquire into the case himself; or (2) direct an investigation to be made by the Police Officer; or (3) any other person.

In the instant case as the allegations made against the accused made ,out a case exclusively triable by the Court of Sessions the Magistrate was clearly debarred from ordering any investigation, but he was not ,debarred from making any enquiry himself into the truth of the complaint. This is what exactly the Magistrate purported to have done in the instant case. The Magistrate issued notice to the complainant to appear before him, recorded the statement of the complainant and his witnesses and after perusing the same he acted under section 204 ,of the Code by issuing process to the accused appellants as he was satisfied that

there were sufficient grounds for proceeding against the accused.

15. In these circumstances we are satisfied that the action taken by the Magistrate was fully supportable in law and he did not commit any error in recording the statement of the complainant and the witnesses and thereafter issuing process against the appellants. The High Court has discussed the points involved thread-bare and has also cited number of decisions and we entirely agree with the view taken by the High Court. Thus on a careful consideration of the facts and circumstances of the case the following legal propositions emerge

1. That a Magistrate can order investigation under section 156(3) only at the pre-

cognizance stage, that is to say, before taking cognizance under sections 190, 200 and 204 and where a Magistrate decides to take cognizance under the provisions of Chapter 14 he is not entitled in law to order any investigation under section 156(3) though in cases not falling within the proviso to section 202 he can order an investigation by the police which would be in the nature of an enquiry as contemplated by section 202 of the Code.

2. Where a Magistrate chooses to take cognizance he can adopt any of the following alternatives :

(a) He can pursue that complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of section 200 and record the evidence of the complainant or his witnesses. The Magistrate can postpone the issue of process and direct an enquiry by himself.

(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police.

3.In case the Magistrate after considering the statement of the complainant and the witnesses or as a result of the investigation and the enquiry ordered is not satisfied that

there are sufficient grounds for proceeding he can dismiss the complaint.

4. Where a Magistrate orders investigation by the police, before taking cognizance under section 156(3) of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the complaint filed before him and take action under section 190 as described above. The present case is clearly covered by proposition No. 4 formulated, above".

14. Hon'ble the Supreme Court in Srinivas Gundluri & others vs M/S. SEPCO Electronic Power Construction Corporation and others, reported in (2010) 8 SC 206 has held in para 22 and 23 which are extracted herein-below for convenience.

"22. From the above, it is clear that the Magistrate only ordered investigation under Section 156 (3) of the Code. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not, directed the police officer concerned for investigation under Section 156 (3) of the Code. As rightly observed by the learned single Judge of the High Court, the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses under Section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in Section 202 did not arise. As rightly pointed out by Mr. Sundaram, instead of taking cognizance of the offence, the learned Magistrate has merely allowed the application filed by the complainant/SEPCO under Section 156(3) of the Code and sent the same along with its annexure for investigation by the police officer concerned under Section 156 (3) of the Code.

23. To make it clear and in respect of doubt raised by Mr. Singhvi to proceed under Section 156 (3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead

of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the case on hand, the learned single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, we are of the view that the Magistrate has not committed any illegality in directing the police for investigation. In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has committed any illegality. As a matter of fact, even after receipt of such report, the Magistrate under Section 190 (1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the Investigating Officer, hence, by directing the police to file chargesheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in sub-section 3 of Section 156".

15. From bare perusal of the complaint, it is crystal clear that prima facie, allegation of commission of offence is made out in the complaint against the respondents. As such, there is sufficient material before the Judicial Magistrate First Class to issue process to the petitioners which he has rightly issued.

16. The contention of the learned counsel for the petitioners is that in the worst view of the mater, this dispute is related to contract and it is a civil dispute and remedy under Civil Law is available, therefore, conversion of civil dispute into criminal matter by registration of FIR is nothing but an abuse of process of law. The contention of the learned counsel for the petitioners is not acceptable as it has been fairly settled by Hon'ble Supreme Court that though there may be a civil remedy is available that is not itself ground to quash the criminal proceeding. The Hon'ble Supreme Court in Priti Saraf and another Vs. State of NCT of

Delhi and another1, wherein it has been held paras 31 and 32 which are extracted as under.

"31. Be it noted that in the matter of exercise of inherent power by the High Court, the only requirement is to see whether continuance of the proceedings would be a total abuse of the process of the Court. The Criminal Procedure Code contains a detailed procedure for investigation, framing of charge and trial, and in the event when the High Court is desirous of putting a halt to the known procedure of law, it must use proper circumspection with great care and caution to interfere in the complaint/FIR/charge-sheet in exercise of its inherent jurisdiction.

32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings".

17. From bare perusal of the complaint it is crystal clear that prima facie allegation of offence is made out in the complaint against the petitioners, as such there is sufficient material before the learned Judicial Magistrate First Class to issue process to the respondent. Thus, direction for investigation and registration of FIR by the Magistrate does not call for interference by this court. Even the contention of learned counsel for the petitioners that 1 AIR 2021 SC 1531

entire amount of Rs.12,41,970/- has already been paid to respondent No.5 and only R.95,000/- withheld by them and false report has been submitted by respondent No.6, may be the defence of the petitioner which cannot be examined by this court while hearing the petition under Section 482 of Cr.P.C.,

18. Hon'ble the Supreme Court in Kaptan Singh Vs. The State of Uttar Pradesh & others2, has held as under:-

"9.1 At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C. has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C. quashed the criminal proceedings, by the time the Investigating Officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the Learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 of IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/ inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C. was at the stage of FIR in that case the allegations in the FIR/Complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in catena of decisions, the High Court is not required to go

2 Criminal Appeal No. 787 of 2021 (decided on 13.08.2021)

into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in the case of Dineshbhai Chandubhai Patel (Supra) in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the Investigating agency nor can exercise the powers like an Appellate Court. It is further observed and held that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the Investigating Authority at such stage to probe and then of the Court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

9.2 In the case of Dhruvaram Murlidhar Sonar (Supra) after considering the decisions of this Court in Bhajan Lal (Supra), it is held by this Court that exercise of powers under Section 482 Cr.P.C. to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C. though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C. Similar view has been expressed by this Court in the case of Arvind Khanna (Supra), Managipet (Supra) and in the case of XYZ (Supra), referred to herein- above.

9.3 Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C."

19. Thus, considering all the facts and circumstances of the case, I am of the opinion that learned Judicial Magistrate First Class, has not committed any illegality in directing the Police authorities for registration of FIR and submission of final report which does not call for interference. This Court has granted the interim relief vide its order dated 10-11-2017 that investigation may go on but no coercive step shall be taken against the petitioners, stands vacated. It is directed that since the final report has been submitted by the Police, the trial Court may proceed with the trial, in accordance with law.

20. This Court has not given any finding with regard to the merits of the matter or whether the offence has been made out against the petitioners or not. The facts and material have been examined for considering the contention raised in the writ petition and counter by the respondents only. The learned trial Court will decide the trial without being influenced from any observation made by this Court while deciding the present writ petition (Cr.), in accordance with law and material placed on record during trial.